The opinion of the court was delivered by
Johnston, J.:
[29] TOid-tjeot1-6’ by adverse possession. [28] The facts found by the court are sufficient to sustain the judgment that was given. Nichols has acquired a title to the land by adverse possession, which is equal to a conveyance in fee. He purchased the land in 1862 at a judicial sale, and has been continuously in possession of it since November 19, 1862. It is true that the judicial proceeding and sale were invalid by reason of the fact that Martha M. Cody was deceased when the foreclosure proceedings were instituted against her, and therefore the sale and the deed made in pursuance of [29] the sale were void and conferred no title on Nichols, who was the purchaser. The title of the defendant, however, rests upon his possession, and not upon the judicial sale or the deed. The proceeding and sale were conducted in good faith, upon the theory that Cody was then alive, and that due notice had been given to her of the foreclosure action. Nichols became a purchaser at the sale in good faith, supposing that he was acquiring a complete title. He entered into possession under a claim of ownership, and not as mortgagee or the trustee of anyone. He continued in the actual, visible and exclusive possession, under claim of title, from 1862 until the commencement of this action, in 1885 — a period of nearly 23 years — paying the taxes and making valuable improvements thereon as owner. A title by prescription arises in the adverse occupant at the end of 15 years, if the owner labors under no disability: and if he does, ' within two years after the disability is removed. (Civil Code, §§16, 17.) It is conceded that the youngest heir of Martha M. Cody attained majority in 1877; and there being but two years after the removal of the disability within which to bring action, the bar was complete and the title of Nichols had fully ripened in 1879. Although the deed under which he claimed was void, it afforded color of title. The claim of ownership under the deed being bona fide, it furnished a good basis for adverse possession, although wholly ineffectual to convey title. (3 Washburn on Real Property, 5th ed., 149.)
“ When the bar of the statute becomes complete, however destitute of the color of title such occupancy may have been under, to the extent that it was actual, visible and continuous, a title by prescription arises in the adverse occupant. This title is in all respects equal to a conveyance in fee. The only distinction which can be recognized between title acquired under a statute of limitations by adverse occupancy, under claim and color of title, and without such claim or color, is, that in the latter case title will only be coextensive with actual, visible and continued occupancy; while in the former, color of title may by construction embrace lauds only part of which was [30] thus actually occupied.” (Roots v. Beck, 109 Ind. 472; Gildehaus v. Whiting, 39 Kas. 706.)
The deed under which a party claims title gives character to his possession, and gives rise to the presumption that he intends his entry shall be coextensive with the description in his deed. An adverse possession in real estate for the statutory period, held in good faith under a deed, will confer title, however defective the deed may be, and although the judicial proceedings and sale under which it is issued were void; and will do so. even if the deed is void on its face. (Walker v. Hill, 111 Ind. 223; same case, 12 N. E. Rep. 387; Hall v. Law, 102 U. S. 461; Tremaine v. Weatherby, 58 Iowa; 615; Sands v. Hughes, 53 N. Y. 287; Chandler v. Spear, 22 Vt. 388; Hoye v. Swan, 5 Md. 237; Humphries v. Huffman, 33 Ohio St. 395; Austin v. Rust, 73 Ill. 491; Ellicott v. Pearl, 10 Pet. 412; Logan v. Jelk, 34 Ark. 547; Murphy v. Doyle, 33 N. W. Rep. 222; Angell on Limitations, § 404.)
3 TitleDyaaSon-reaem'ption, denied. The plaintiff insists that Nichols was holding under the Cody mortgage, as.an equitable assignee, and must be treated as holding the possession in trust for the heirs of the mortgagor. She claims that as the issues were framed and found, the defendant is only entitled to the rights and is bound by the obligations of a mortgagee in possession, and that the decree rendered should have been for an equitable redemption. As we have seen, the entry of the defendant was not under the mortgage, but he took and held possession under a claim of absolute ownership. The defendant recognized no trust nor any ot^er that» his own, and at no time was he intending to hold in subserviency to another, p0ggessj0U was 0peu anf] hostile from the inception, and so continued until the commencement of this action.
Under the facts found there is no ground for the contention that the defendant was holding under the mortgage.
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The opinion of the court was delivered by
Johnston, J.:
[29] TOid-tjeot1-6’ by adverse possession. [28] The facts found by the court are sufficient to sustain the judgment that was given. Nichols has acquired a title to the land by adverse possession, which is equal to a conveyance in fee. He purchased the land in 1862 at a judicial sale, and has been continuously in possession of it since November 19, 1862. It is true that the judicial proceeding and sale were invalid by reason of the fact that Martha M. Cody was deceased when the foreclosure proceedings were instituted against her, and therefore the sale and the deed made in pursuance of [29] the sale were void and conferred no title on Nichols, who was the purchaser. The title of the defendant, however, rests upon his possession, and not upon the judicial sale or the deed. The proceeding and sale were conducted in good faith, upon the theory that Cody was then alive, and that due notice had been given to her of the foreclosure action. Nichols became a purchaser at the sale in good faith, supposing that he was acquiring a complete title. He entered into possession under a claim of ownership, and not as mortgagee or the trustee of anyone. He continued in the actual, visible and exclusive possession, under claim of title, from 1862 until the commencement of this action, in 1885 — a period of nearly 23 years — paying the taxes and making valuable improvements thereon as owner. A title by prescription arises in the adverse occupant at the end of 15 years, if the owner labors under no disability: and if he does, ' within two years after the disability is removed. (Civil Code, §§16, 17.) It is conceded that the youngest heir of Martha M. Cody attained majority in 1877; and there being but two years after the removal of the disability within which to bring action, the bar was complete and the title of Nichols had fully ripened in 1879. Although the deed under which he claimed was void, it afforded color of title. The claim of ownership under the deed being bona fide, it furnished a good basis for adverse possession, although wholly ineffectual to convey title. (3 Washburn on Real Property, 5th ed., 149.)
“ When the bar of the statute becomes complete, however destitute of the color of title such occupancy may have been under, to the extent that it was actual, visible and continuous, a title by prescription arises in the adverse occupant. This title is in all respects equal to a conveyance in fee. The only distinction which can be recognized between title acquired under a statute of limitations by adverse occupancy, under claim and color of title, and without such claim or color, is, that in the latter case title will only be coextensive with actual, visible and continued occupancy; while in the former, color of title may by construction embrace lauds only part of which was [30] thus actually occupied.” (Roots v. Beck, 109 Ind. 472; Gildehaus v. Whiting, 39 Kas. 706.)
The deed under which a party claims title gives character to his possession, and gives rise to the presumption that he intends his entry shall be coextensive with the description in his deed. An adverse possession in real estate for the statutory period, held in good faith under a deed, will confer title, however defective the deed may be, and although the judicial proceedings and sale under which it is issued were void; and will do so. even if the deed is void on its face. (Walker v. Hill, 111 Ind. 223; same case, 12 N. E. Rep. 387; Hall v. Law, 102 U. S. 461; Tremaine v. Weatherby, 58 Iowa; 615; Sands v. Hughes, 53 N. Y. 287; Chandler v. Spear, 22 Vt. 388; Hoye v. Swan, 5 Md. 237; Humphries v. Huffman, 33 Ohio St. 395; Austin v. Rust, 73 Ill. 491; Ellicott v. Pearl, 10 Pet. 412; Logan v. Jelk, 34 Ark. 547; Murphy v. Doyle, 33 N. W. Rep. 222; Angell on Limitations, § 404.)
3 TitleDyaaSon-reaem'ption, denied. The plaintiff insists that Nichols was holding under the Cody mortgage, as.an equitable assignee, and must be treated as holding the possession in trust for the heirs of the mortgagor. She claims that as the issues were framed and found, the defendant is only entitled to the rights and is bound by the obligations of a mortgagee in possession, and that the decree rendered should have been for an equitable redemption. As we have seen, the entry of the defendant was not under the mortgage, but he took and held possession under a claim of absolute ownership. The defendant recognized no trust nor any ot^er that» his own, and at no time was he intending to hold in subserviency to another, p0ggessj0U was 0peu anf] hostile from the inception, and so continued until the commencement of this action.
Under the facts found there is no ground for the contention that the defendant was holding under the mortgage.
[31] s’ ue^ciefenses, not inconsistent with one [30] Plaintiff contends that by the pleadings the defendant limited himself to the defense of equitable relief under the mortgage, and was not entitled to avail himself, or to receive the [31] advantage of the defense of the statute of limitations. We do not agree with this contention. The petition of the plaintiff was an ordinary one in ejectment, alleging ownership and the right of possession, and asking for rents and profits and the recovery of possession. The defendant answered by denying generally every fact alleged in the petition, except that he was in possession of the premises; and he averred that he had been in the open, notorious, continuous and adverse possession from November, 1862, as the owner thereof under the judicial sale and deed; and therefore that the plaintiff was barred under the laws of the state from prosecuting the action. In further answer, he sets up a detailed history of the title of the land from its sale by the United States down to the commencement of the action, reciting at length the giving of the mortgage, its foreclosure, the sale of the land and the execution of the deed to himself, his possession and payment of taxes, as well as making improvements thereon; and he refers to the alleged defect in his deed by reason of the death of Martha M. Cody prior to the commencement of the foreclosure proceedings. He then asks that if his title should fail upon the other defenses and by reason of the defects mentioned, he should be granted equitable relief and protection to the full amount of the note and interest, the taxes and interest, and the value of the improvements which he had placed on the premises. In connection with these allegations, it was stated, however, that by reason of the facts stated the plaintiff was the actual owner of the premises, and that the plaintiff was barred from the prosecution of the action or the setting-up of any claim or title to the land. There is no incon- . . , n , » sistency m the averments ot the answer, nor anything which precluded the court from awarding the judgment that was rendered. A defendant is entitled to set forth as many grounds of defense and for relief, either legal or equitable, as he may have. (Civil Code, §§ 94, 95.) In this case the defendant claimed ownership by adverse possession, and that the plaintiff was barred under the laws of the state from maintaining her action; but failing in these defenses, [32] he asked for such relief as the facts alleged would warrant. We see no reason why this practice is not permissible. In actions for slander the defendant may include in his answer a denial that he used the language imputed to him, as well as an averment that the language so imputed is true. These defenses are held not to be inconsistent, and certainly there is no more ground for holding the defenses made in this action to be inconsistent with each other. (Cole v. Woodson, 32 Kas. 272.)
The legal defense of title arising from adverse occupancy and the statutes of limitations is fully sustained by the facts which have been found, and hence there was no occasion for the court to go further. The equitable relief was only asked in the event that the court should find from the facts that the legal defenses were not made out. It is immaterial that some of the conclusions of law stated by the court may be incorrect, so long as the facts sufficiently support the judgment; and this being true, the judgment that was rendered should be and will be affirmed.
All the Justices concurring.